1. law, govt and politics

Top Social Media Liability Risks of 2012:
What You Must Know to Avoid Liability When Using Personal Smartphones,
Facebook, Blogs and E-Mail Handout
Introduction
Welcome. Your timing is impeccable. You enter this educational journey at the crossroads of emerging social
media and developing media law. Congress and our court system are trying to play catch-up. As our nation’s
courts and legislative bodies gasp for air, social media technologies continue to develop at a frenetic pace.
And, here lies the problem.
The divide between social media development and legal development has created a huge regulatory gap.
Inconsistent legal decisions feed the insecurity of both employers and employees. Social media best practices
have become a guessing game. See CITY OF ONTARIO, ET AL, v. QUON ET AL. Certiorari to the United States Court of
Appeals for the Ninth Circuit No. 08-1332. Argued April 19, 2010-Decided June 17, 2010
The goal of this manual is to fill this dangerous legal gap. I hope to carve out a safe pathway for you to use
social media effectively. Looking over your shoulder every-time you send an e-mail or use Facebook, chills
your productivity. Social media should be a tour de force to maximize your work efforts, not a busy launching
pad for costly and embarrassing lawsuits.
You are presented with a complicated social media problem. How do you properly manage the risks in such a
chaotic legal environment? This problem becomes more perplexing when you are a public official or public
employee.
Courts are calibrating their judicial decisions to accommodate the emergence of social media. They are
creating new laws or repurposing old laws to reflect new media technology. This especially holds true in the
area of privacy, and libel rights. Unfortunately, this transformation will take years. Therefore, an important
question surfaces; how long do we wait for the courts and Congress to establish a regulatory framework?
What do we do in the interim? Absent consistent laws, do we base social media conduct on non-binding
netiquette recommendations? These are the questions I hope to answer in this program.
It is my opinion that neither the courts nor Congress will ever catch up to emerging social media technologies.
Therefore, a solid case can be made for being proactive. This doesn’t mean you have a green light to
arbitrarily devise your own social media laws. Contrarily, you need to develop a more secure approach to
developing electronic content based on basic negligence principles. Let me explain.
Courts readily accept the notion that absent guiding statutes or case-law, you can default to basic negligence
principles of reasonability. Essentially, you are applying the reasonable person standard to your social media
content. For instance, if you are unclear about whether personal data on your workplace cell phone is
considered private, make it a policy to have employees use two phones, one for business and one for personal.
This policy would be positioned in the first or second paragraph of your written policy. Sounds simplistic, but
sometimes simple solutions can save you from costly and embarrassing lawsuits.
As the courts hammer out a new legal framework for social media, the adoption of my new electronic writing
formulas and legal perspectives keep you safe. In the near future, I have great faith that our legal system will
develop a more consistent body of social media. However, the risks are too great to wait for that day to arrive.
1
Four Social Media Liability Primers
1) To establish your negligence, a plaintiff can demonstrate that it’s a factual impossibility that the
Internet is a secure electronic platform. And, since social media companies function on the Internet,
you knew or should have known this fact. Therefore, it is reckless for you to endorse Facebook or
similar social media sites without properly notifying employees of the inherent risks.
Website Examples (“You Knew or Should Have Known”)
Notes:
2) Defining Your Duty Of Care
•
You are a broadcaster:
•
You don’t own the wires that transmit the data:
a) Olmstead v. United States, 277 US 438 - 1928
b) Katz v. United States, 389 U.S. 347
3) Using Social Media As Impeachment Evidence
Brady v. Maryland 373 U.S. 83 (1963)
The Brady Rule, named for Brady v. Maryland, 373 U.S. 83 (1963), requires prosecutors to disclose
materially exculpatory evidence in the government's possession to the defense. "Brady material" or
evidence the prosecutor is required to disclose under this rule includes any evidence favorable to the
accused-- evidence that goes towards negating a defendant's guilt, that would reduce a defendant's
potential sentence, or evidence going to the credibility of a witness. If the prosecution does not disclose
material exculpatory evidence under this rule, and prejudice has ensued, the evidence will be
suppressed. The evidence will be suppressed regardless of whether the prosecutor knew the evidence
was in his or her possession, or whether or not the prosecutor intentionally or inadvertently withheld
the evidence from the defense. The defendant bears the burden of proving that the undisclosed
evidence was material, and the defendant must show that there is a reasonable probability that there
would be a difference in the outcome of the trial had the evidence been disclosed by the prosecutor.
Giglio v. United State 405 U.S. 150 (1972)
In 1972, in Giglio v. United States, the U.S. Supreme Court extended the Brady rule to require
that the prosecution disclose to the defense any information relevant to the credibility of
the government’s witnesses. The disclosure requirement applies to both prosecution and police and
imposes a duty upon police not only to disclose known information but also to learn of such
information.
2
4) Social Media First Amendment Rights (Shattering The Marketing Myths)
City of San Diego v. Roe 543 U.S. 77 (2004)
In Roe, the Court considered a First Amendment case involving sexually explicit behavior by a police
officer. According to the Court, Roe, a San Diego police officer, was terminated for having made a video
of himself stripping off a police uniform and masturbating. He sold the video on the adults-only section
of eBay, the popular online auction site. ... Roe also sold custom videos, as well as police equipment,
including official uniforms of the San Diego Police Department (SDPD), and various other items such as
men’s underwear. Roe’s eBay user profile identified him as employed in the field of law enforcement.
When this conduct came to the attention of Roe’s department, an investigation was initiated. ...
Thereafter, the department ...began proceedings which resulted in Roe’s dismissal from the force. Roe
then brought suit alleging that the termination violated his rights of freedom of speech. The Court found
in favor of the City of San Diego, holding that the officer’s conduct did not relate to a matter of public
concern for First Amendment purposes and, therefore, did not preclude disciplinary action against the
officer. The Court said:
Although Roe’s activities took place outside the workplace and purported to be about subjects not related
to his employment, the SDPD demonstrated legitimate and substantial interests of its own that were
compromised by his [Roe’s] speech. Far from confining his activities to speech unrelated to his
employment, Roe took deliberate steps to link his videos and other wares to his police work, all in a way
injurious to his employer. The use of the uniform, the law enforcement reference in the Web site, the
listing of the speaker as “in the field of law enforcement,” and the debased parody of an officer
performing indecent acts while in the course of official duties brought the mission of the employer and
the professionalism of its officers into serious disrepute. ... [T]here is no difficulty in concluding that
Roe’s expression does not qualify as a matter of public concern under any view of the public concern
test. ... The speech in question was detrimental to the mission and functions of the employer. There is no
basis for finding that it was of concern to the community as the Court’s cases have understood that term
in the context of restrictions by governmental entities on the speech of their employees. On this
rationale, the Court upheld the City’s action in terminating Roe.
Lesson Learned: A government agency may discipline or terminate an employee for improper use of
social media, provided that the court finds that the speech in question did not touch upon a matter of
public concern, or that, if it did, the department’s interests outweigh the First Amendment interests of the
officer in the case.
Notes:
3
A Social Media Liability Program Overview
My social media liability system is deeply rooted in 10 guiding principles:
Principle I: Social media companies (Facebook) are profit making companies;
Principle II: Social media companies survive by selling ad space to advertisers and marketers;
Principle III: Your duty of care at work is to build accurate public records, not relationships;
Principle IV: Courts focus on content, not what media platforms you use to send messages;
Principle V: Public record laws don’t change because your records are created on social media;
Principle VI: Contrary to popular belief, social media companies can’t offer you extraordinary speech rights;
Principle VII: On-line libel is problematic in determining harm because you have an undefined audience;
Principle VIII: The law has carved out privacy immunities for Internet providers that the user doesn’t have;
Principle IX: Your home is no longer your castle when it comes to protecting your home computer data;
Principle X: In litigation, attorneys are under intense legal pressure to search for all relevant electronic data.
Notes:
4
CITY OF ONTARIO , ET AL, v. QUON ET AL.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
No. 08-1332. Argued April 19, 2010-Decided June 17, 2010
Facts and Holding
The issue is whether police Sgt. Jeff Quon’s Fourth Amendment rights were violated when his supervisors read personal
text messages he sent on his city-issued pager while at work. The U.S. Supreme Court reversed a lower appeal court’s
ruling that Quon’s rights had been violated. “Because the search of Quon’s text messages was reasonable, [the city] did
not violate respondents’ Fourth Amendment rights, and the [United States Court of Appeals for the] Ninth Circuit erred
by concluding otherwise.”
Lessons Learned
1) This case was narrowly tailored to the facts and didn’t set a standard for employee privacy. Justice Kennedy in
opinion for the court stated, “The Court does not resolve the parties’ disagreement over Quon’s privacy
expectation. Prudence counsels caution before the facts in this case are used to establish far-reaching premises
that define the existence, and extent, of privacy expectations of employees using employer-provided
communication devices.”
2) “This case can be decided by determining that the search was reasonable even assuming Quon had a reasonable
expectation of privacy. The court cited the O’Connor v. Ortega case 480 U.S. 709 (1987). In the O’Connor case
a four Justice plurality concluded that there was a two part test threshold for privacy: 1) Where the government
office is so open and there is no expectation of privacy, you consider the operational realities of the workplace
and privacy determinations are based on a case by case basis; 2) Where there is a legitimate expectation of
privacy, you determine the reasonability of the search based on the circumstances. Justice Scalia concurred in
the judgment but stated that his opinion would dispense with the operational realities inquiry and conclude that
the offices of government employees are covered by the Fourth Amendment protection as a general matter. In
the Quon decision, the Supreme Court noted that the two O’Connor approaches-the plurality’s and Justice
Scalia’s-therefore leads to the same result here.
3) It would also be necessary to consider whether a review of messages sent on police pagers, particularly those
sent while officers are on duty, might be justified for other reasons, including performance evaluations, litigation
concerning the lawfulness of police actions, and perhaps compliance with state open records laws. See Brief for
Petitioners 35–40 (citing Cal. Public Records Act, Cal. Govt. Code Ann. §6250 et seq. (West 2008)). These
matters would all bear on the legitimacy of an employee’s privacy expectation.
4) The court implied that public employees could afford their own personal phones to protect their privacy. “Cell
phone and text message communications are so pervasive that some persons may consider them to be essential
means or necessary instruments for self-expression, even self identification. That might strengthen the case for
an expectation of privacy. On the other hand, the ubiquity of those devices has made them generally affordable,
so one could counter that employees who need cell phones or similar devices for personal matters can purchase
and pay for their own. And employer policies concerning communications will of course shape the reasonable
expectations of their employees, especially to the extent that such policies are clearly communicated.”
5) Quon was told that his messages were subject to auditing. As a law enforcement officer, he would or should
have known that his actions were likely to come under legal scrutiny, and that this might entail an analysis of his
on-the-job communications. OPD’s audit of messages on Quon’s employer-provided pager was not nearly as
intrusive as a search of his personal e-mail account or pager, or a wiretap on his home phone line, would have
been. That the search did reveal intimate details of Quon’s life does not make it unreasonable, for under the
circumstances a reasonable employer would not expect that such a review would intrude on such matters. The
search was permissible in its scope. This Court has “repeatedly refused to declare that only the ‘least intrusive’
search practicable can be reasonable under the Fourth Amendment.”
5
Question #1: What is the judicial landscape of social media liability?
Here is the answer to question number one. The main goal for any social media user is to effectively manage
the risks of integrating Facebook, smartphones, and other social media into your communications
infrastructure. In order to do this you need to familiarize yourself with current judicial holdings. Below are
examples of recent social media liability exposure:
•
The average social media lawsuit is around $250,000 and up. Most of these lawsuits involve libel and
privacy cases.
•
In extreme cases, there have been blog and social network verdicts and settlements in the millions. For
instance, here in Broward County, FL a few years ago there was an 11 million dollar case involving an
educational consultant suing a person for libeling her on blog.
•
Many of these cases involve infliction of emotional distress. What was once thought of as pure
nonsense, these claims have been converted into verdicts or settlements costing organizations hundreds
of thousands of dollars.
•
An emerging pattern from many of the social media related cases is that courts are refusing to make
privacy distinctions between your public social network profile and private area. Courts are not
willing to carve out new areas of privacy law to accommodate someone who thinks checking off a few
privacy preference boxes constitutes an overt act of securing privacy.
•
The key analysis in many of the social media related lawsuits is to focus on content as opposed to
where you sent the data from or whether it was a personal smartphone or social media account. Too
many social media users fall into the hidden legal trip of thinking he or she can leverage social media
content based on promises from marketers that Facebook or other social media platforms operate
outside the sphere of civil and criminal laws. Recent court decisions clearly refute this myth.
Notes:
6
Question #2: What are some general guidelines on drafting an airtight social media policy that holds up
in court?
Here is the answer to question number two. Below is a list of general guidelines to help you develop your
social media liability and internal training.
Tip#1: If you are borrowing policies from other organizations, stop this practice immediately. The recent U.S.
Supreme Court case in The City of Ontario, CA v. Quon, 130 S.Ct. 2619 (2010). clearly states that your
written policy must be customized to reflect the “operational realities” of your workplace. Also, 99% of these
borrowed policies have hidden drafting flaws that exposes you in a legal claim. How do I know this, because I
have reviewed hundreds of social media policies and trained thousands of people over the past twenty one
years in social media liability. We move on to Tip #2.
Tip #2: One of the fundamental flaws in policy drafting, especially social media policies, is writing the
document as pure standard operating policy. Approaching the policy as an SOP limits your scope in defining
the core liability issues. You tend to focus more on office culture than state and federal statutes. Your social
media policy needs to be risk policy specifically outlining the foreseeable risks that can occur using social
media. Further, it’s a document that clearly announces the inherent risks of social media networks. More
specifically, stating the Internet can not be one hundred percent secured and since social networks function on
the backbone of the Internet, social networks can’t be one hundred percent secured. Please go to Tip #3.
Tip #3: Your policy should be written in a concise format and should be no longer than three or four pages
and at the most five pages. This strategy mitigates the chance of employees or others claiming your
policy was too long and poorly crafted to understand.
Tip #4: You need to use a process named codification in the building of your social media liability policy.
Implementing this policy simply means you are constructing a social media policy based on current statute and
case-law. When you craft sentences, you use the same language as the statute or case law. You also add a legal
citation at the end of the sentence. This technique adds a stronger foundation to your social media policy.
Instead of focusing on ethics, you are emphasizing the current law which carries more weight with judges and
juries. Now lets move on to question
number three.
Question #3: How are the courts ruling on social media privacy?
Here is the answer to question three. There are five main points on social media privacy you need to know.
Main Point #1: You need to understand that Courts consider using Facebook or other social networks as a
high liability event. This goes for all social media. One click of the send button and you can permanently
destroy a person’s reputation. There is no way to rehabilitate that person’s image, because we have no real
metric on who saw the defamatory or offensive material.
•
Case where Facebook users said Facebook violated their privacy rights.
Out of the United States District Court, Northern District, San Jose, CA
Settlement was $9,500, 000 (Nine Million and Five Hundred Thousand Dollars)
•
Woman claimed ex-boss hacked into personal e-mail with her Internet account.
U S. District Court, Eastern District, VA
Plantiff Verdict: $275,000
7
Main Point #2: It is my belief that Facebook will become the leading source of these types of claims. Your
goal in developing your Facebook policy and training is to remember this document is designed to announce
the reasonable risks, not solve behavioral problems. Courts don’t expect you to account for every employee
indiscretion.
Main Point #3: One mistake I see often is where social media policies don’t place enough emphasis on
personal Facebook accounts. Aside from warning the Facebook user in the first paragraph that your data
could be compromised, you need to tell your employees that they could be professionally and personally libel
for destroying public records on their personal social media accounts. And, their unprotected speech-such as
hate speech and defamation will be exposes in litigation via federal and state discovery rules.
Zimmerman v. Weis Markets, Inc., RANE ZIMMERMAN,. : PLAINTIFF. : NO. CV-09-1535. : vs. WEIS
MARKETS, INC., DEFENDANT ... (C.P. Northumberland, PA, May 19, 2011)
Plaintiff in a personal injury action was ordered to provide defendant with all passwords, user names and login names for any and all MySpace and Facebook accounts maintained by plaintiff. Portions of the sites
available to the public contained photographs and other information relevant to plaintiff’s claims and
suggested non-public portions of the sites also contained relevant information.
Plaintiff filed suit against defendant for damages from an injury to his left leg suffered in a forklift accident
while working for defendant’s subcontractor at one of defendant’s markets. Plaintiff’s Facebook page listed
his interests as “riding” and “bike stunts” and contained photos of plaintiff with his motorcycle and a black
eye. The Facebook page also showed a photograph of plaintiff in shorts with the scar from the forklift accident
visible even though plaintiff had testified at deposition that he had become too embarrassed to wear shorts due
to the scar. Defendant filed a motion to compel access to plaintiff’s Facebook and MySpace pages.
The court stated that it agreed with “the rationale of the opinion in” McMillen v. Hummingbird Speedway
Inc., 2010 Pa. Dist. & Cnty. Dec. LEXIS 270 (Jefferson Co. Com. Pl. 2010), “authorizing access for the
reasons that no privilege exists in Pennsylvania for information posted in the non-public sections of social
websites, liberal discovery is generally allowable, and the pursuit of truth as to alleged claims is a paramount
ideal.” The court held that the publicly accessible portions of plaintiff’s Facebook and MySpace accounts
suggested “a reasonable likelihood of additional relevant and material information on the non-public portions
of these sites.” The court stated: By definition, a social networking site is the interactive sharing of your
personal life with others; the recipients are not limited in what they do with such knowledge. With the
initiation of litigation to seek a monetary award based upon limitations or harm to one's person, any relevant,
non-privileged information about one's life that is shared with others and can be gleaned by defendants from
the internet is fair game in today's society. Source: Applied Discovery Website
Main Point #4: Another important issue you need to state in your policy is that the hidden liabilities of
“Facebook Friends” When you accept a “Friend” on your Friends List, you are implying that this person is
somebody you trust and endorse. Also, they may have “Friends” on their list that you don’t know or wouldn’t
approve of.
Notes:
8
Main Point #5: One last issue regarding the technical construction of policies and then I want to move on to
other Facebook liability related content. Another important take away from the recent U.S. Supreme Court
Case of the City of Ontario, CA v. Quon, is that the written policy must be clearly communicated with
specialized training.
Question #4: What are the hidden risks of using social media?
Here is the answer to question four. There are many hidden risks but our focus is on seven of
the most important risks that expose you to liability.
Risk #1: Both factually and legally, you have little or no expectation of privacy on Facebook. Let me address
the factual part of the Facebook infrastructure. Similar to other social media companies, Facebook rides on the
backbone of the Internet. It’s not breaking news that the Internet can’t be secured.
Notes::
•
A Suffolk County, N.Y. judge has ruled that photos, messages and other materials posted
to Facebook and other social-networking sites can be used as evidence in court–even if
the person enables privacy settings to restrict who can see them. The ruling came about during a civil
suit brought by a woman claiming she had suffered serious injuries after falling out of an office
chair. The woman sued the manufacturer and distributor of the chair for damages, saying she was
largely housebound from her injuries. Attorneys for the defendants, however, cited photos the
woman had posted to publicly viewable portions of her Facebook account that showed her
vacationing and being active.
Risk #2: Keep this fact in mind, Facebook is designed for individuals in a non-commercial or nongovernmental setting. It’s not a top priority for Facebook to accommodate your public record laws or business
records law in the private sector. This is especially true when it comes to redacting certain information
because it’s exempt to the public.
Notes:
9
Risk #3: Did you do your due diligence in managing the legal risks of Facebook? For instance, prior to
integrating Facebook into your communication infrastructure, did you perform a civil and criminal
background like you would do with other vendors? Think it sounds silly, think again. When a plaintiff is
proving social media negligence, an important aspect of establishing liability is proving that you invited the
harm. If a vendor that you are using had a history of paying out large class action judgments and settlements
for various legal claims, you knew or should have known using their services could be risky. For instance:
•
From 2005 to 2009 Facebook has changed their privacy policies almost every
year. Most of these changes were prompted by lawsuits.
•
Lane v Facebook (United States District Court for Northern District Of
California, Decided March 17, 2010 ) 9.5 Million Dollar
Settlement
The mother of all Facebook privacy class action suits, this one was triggered by Facebook’s Beacon
advertising platform (introduced in late 2007), which -- as you might already guess -- resulted in posting user
personal data without permission. Facebook wound up turning off Beacon in 2009, and then ponied up $9.5
million to fund a privacy foundation. Arguably, though, the company learned little from this escapade (or the
foundation, for that matter). See Noble, Marfeo, Meth, and Cohen above. If those suits seem like déjà vu, they
are. Beacon was killed off, but not much else appears to have changed at Facebook.
•
Marfeo v Facebook (United States District Court, District Court of
Rhode Island, Decided June 17, 2010)
This class action suit hits at Facebook’s core business. Moore explains that the suit alleges Facebook
“intentionally and knowingly transmitted users’ personal information to third-party advertisers without the
users’ knowledge or consent.” Moore says: “This type of case may lead to various states enacting privacy
statutes aimed at Facebook.” That could be a legal jungle for Facebook. But worse, linking users with
advertisers appears to be a core revenue stream for Facebook -- and anything that threatens that hits at the
company’s heart.
Risk #4: Now you should know that State and local governments were concerned that under the previous
terms of service they would have to pay Facebook’s legal fees, but with the help of the National Association
of State Chief Information Officers Association, Facebook modified its terms of service and eliminated their
indemnity clause unless it’s allowed by state constitution.
Notes:
Risk #5: Facebook reputation issues. First of all you need to know that reputation is a property interest. This
means without your reputation intact, there can be serious economic harm. When one click of the send button
can cause irreparable harm, judges are very weary about governments saying they didn’t foresee the harm
when they registered for Facebook page.
Risk #6: Contrary to popular believe your intent in using Facebook is not to build relationships with your
citizens or customers. It’s to deliver factual records. Courts don’t see your role as a relationship builder. To
avoid many negligence lawsuits, you have to prove in court that Facebook was used solely to perpetuate
business.
10
Risk #7: This risk focuses on the issue of Facebook immunity. You need to remember this, under the
Communications Decency Act Section 230 and the Digital Millennium Act of 1998, Internet providers have
immunity as long as they remain as publishers, not editors. I think this is something your Facebook users need
to know. In fact, this disclaimer should be very prominent on your website.
Notes:
Question #5: What are the most frequently asked social media questions in your seminars?
Frequently Asked Questions
Here is the answer to question five. These are 7 commonly asked Facebook questions in my seminars:
1) Should we have a two way communication capability on Facebook?
Absolutely Not. On the surface two way communication may look great, but it creates costly legal problems
down the line. It’s reasonably foreseeable to anticipate that there will be nasty and defamatory digital
exchanges between co-employees, and between employees and citizens. Even on a more civil level, citizens
may ask for legal or health advice and government employees could expose themselves to negligence lawsuits
or HIPPA violations. When you have one way communication, you control the information and protect the
sanctity of your public record.
2) Is every Facebook post, especially from a private person, considered a public record?
A lot depends on the scope of your public records or business records laws. But, normally only posts that are
made or received for the perpetuation of business. Messages on the Facebook wall that pertain to a good
restaurant or some light-hearted sports banter, is considered transitory and not perpetuating business. You
need to be careful that you check with your attorney before you removing posts. This is especially the case
when there is a litigation hold or an internal investigation.
3) Is a government agency responsible for retaining Facebook posts for public records?
Most states base Facebook retention obligations on whether you qualify as a custodian of the public or
business records. If you have supervision or control over the comments, you will most likely have custodial
obligations if the messages qualify as public or business records. You should also know that employees using
their private Facebook pages for public records may be considered custodians. This means the public records
they create and house on their private Facebook pages must be retained according to your state’s retention
laws.
4) What is my liability for removing posts from our Facebook page?
A number of important issues are in play on these questions. First, you have to make sure that you don’t
remove messages that are relevant to the perpetuation of business. This could be a citizen’s reaction to a new
road or hiring of a vendor. If you are going to allow two way communications, you have to be careful in
filtering out public record statements. Second, if you start deleting posts without consulting your attorney, you
may run the risk of triggering Title VII discrimination claims. An employee or citizen could claim you delete
all my posts as an African American woman, but don’t delete the same type of post from a white woman.
Third, you need to be very careful you don’t delete any Facebook information when there is a litigation hold
or a possible lawsuit on the horizon.
11
5) Is an employer liable for employee messages on their personal Facebook page?
If it’s work-related, the answer is yes. Courts don’t distinguish between perpetuation of business on your work
Facebook page and your private Facebook page. It’s not about the platform you are using; it’s whether your
content can be characterized as a public or business record under your state laws. Also, in today’s digital age,
attorneys are on the hunt for evidence that can impeach your character. You should make this crystal clear in
your Facebook or social media policy.
6) Is an employee liable for his or her Facebook messages at work or home?
The employer may have deep pockets, but the employees may have to “show me the money” too. If the
employer can claim the employee directly violated their Facebook policies, the employee could be exposed to
personal liability.
7) Don’t I have more leverage on Facebook when it comes to social media speech?
A recent case involving a model from Canada that claimed she was libeled in Google’s Blogger.com can
answer this question. In this case out of the Supreme Court of the State of New York, the court rejected the
blogger’s argument, “that no one takes statements made on the Internet seriously.” The court used traditional
defamation principles and found the words, “skank”, ho, and whoring were actionable. These were not mere
statements of opinion, they were words that have negative implications of sexual promiscuity. It then ordered
Google and Blogger.com to provide the plaintiff with the blogger’s identity. So much for anonymity.
The fact that you use Facebook doesn’t exempt you from the areas of unprotected speech such as hate speech,
inciteful speech, defamation, and offensive speech.
Here are some other examples where Facebook speech was not protected:
•
An officer was fired in Sandy Springs, Georgia after he posted specific information on
a raid that the police would be executing.
•
A police officer in South Carolina was fired after a photo surfaced on Facebook of
scantily-clad women posing on the hood of his town police cruiser.
•
A 16 year veteran of the Bourne Fire Department was fired for disparaging posts
against superiors in the fire department and other town employees.
•
A West Allis, Wisconsin dispatcher was fire for a Facebook post admitting she did drugs.
8) How far can an employer go in using Facebook information to fire employees?
You should know that some firings have met resistance by the National Labor Relations Board. You have to
make sure your Facebook policy isn’t too overbroad, especially dealing with negative Facebook posts on
private networks. A recent case involving American Medical Response of Connecticut was a test case for this
issue. Here the case involved an employee making negative statements against her boss on her Facebook
account at home. The NLRB felt the remarks were “protected concerted activity” since she was discussing
terms and conditions of her employment with co-workers and others.
9) How far can an employer go in capturing an employee’s Facebook messages at work?
Under the 1986 Electronic Communications Protection Act 18 U.S.C. &2510 (1986), the bar is not that high
regarding an employer’s ability to seek an employees’ work-related Facebook posts. The employer just needs
to provide a legitimate business interest.
10) How far can an employer go in capturing an employee’s Facebook at home?
Due to privacy issues, an employer would have a higher hurdle. However, more and more courts are
eradicating the distinctions made between the home or personal computer and the work computer. The key is
going to be if there is work-related information that is negatively impacting the employer. Remember, you
don’t own the wires.
12
11) How far can an attorney go in capturing employee Facebook evidence in a lawsuit?
This is a thorny area for employers. Under the amendments of the Federal Rules of Civil Procedure 26 (c),
attorneys have broader authority to seek relevant electronic evidence. Facebook has become prime evidence to
impeach a person’s character or statements. In your policy you need to issue employees and citizens that
during a lawsuit, their posts, pictures, and video leave a digital trail for hungry “legal eagles”. Facebook
evidence can make or break a case. Look at these examples:
•
A Canadian woman is fighting to have her health benefits reinstated by her employer’s
insurance company. She is being treated for depression, but her insurance company questioned her
health claim after seeing Facebook photos of the woman enjoying herself at a party.
•
The American Academy of Matrimonial Lawyers say 81% of its members have used
or faced evidence from Facebook and other social networks.
12) What about private messages on Facebook to attorneys and doctors.
This has become a hotly contested area. There was a recent federal case in the U.S. District Court in Colorado
that opened some eyes. Here two repairman sued Wal-Mart after an electrical accident in one of the stores.
The judge ruled that the private comments on Facebook were subject to subpoenas sought by Wal-Mart . The
judge ruled that they were not protected by doctor-patient privilege or subject to a protective order. His
reasoning was that the subpoenas were reasonably calculated to discover evidence that might be relevant to the
lawsuit. When it comes to contacting a private attorney or doctor via Facebook messages, due to the nature of
the platform, your privacy is diminished. You need to make sure in your policy and training to announce the
risks of contacting attorneys, doctors, and clergy on Facebook may erode your scope of privacy. Let’s put all
this information in practice with a few realistic scenarios.
Building Facebook Negligence Detection Skills
Scenario I
City X Public Works Supervisor John Smith was involved in the hiring process of filling a vacant secretarial
position. Jane Lahey was one of many candidates that came in to Supervisor Smith’s office to interview for
the position. A few days after the interview, while Supervisor Smith was on vacation, he sent a message on his
private Facebook account to his best friend Tom Jones. In the Facebook message Supervisor Smith stated:
“Hey Tom, just a few days ago I interviewed this “hottie” Jane Lahey. Let me tell you something, I don’t care
if this woman can’t add one and one, she’s hired. We need to revitalize this office with a fresh beautiful
woman like Jane Lahey. I’m so tired of working in an office of ugly porkers that makes this place look like a
geriatric ward.”
What are the main legal issues here?
1) Discrimination evidence (Title VII claims, Age in Employment Discrimination)
2) Sexual harassment evidence (hostile environment)
3) Defamation
4) Can an attorney capture this evidence notwithstanding it came from a private Facebook account?
Notes:
13
Scenario II
City Y technology administrator Tim Johnson used his personal Blackberry device that he recently purchased
to send a text message to his wife on her Facebook account. The text message was an opinion regarding a
salesperson for Mobile Data Inc. who was a vendor for the city. The message specifically concerned the
salesman’s performance in supplying new security software to protect employee health data. Johnson’s wife
accessed her husband’s message on her private Facebook account. To the surprise of Tim Johnson and his
wife, a third party application captured the message and it went viral on a number of other social media
networks. Below is a copy of the message:
“Honey, I will never hire Mobile Data Inc. again. I won’t even let them bid for another job. Their software is
pretty good, but I’m tired of dealing with this pushy and lying Iranian salesman named Muhammad Sheleka.
He always changes the price on me, then he tries to up-sell me. I’m so sick of giving these people bidding
preferences because of their national origin. It’s amazing sweetie, these people come to our universities for a
first class education and then use that knowledge to “blow us up.” Baby, I’m in my fifties and I can’t wait to
retire and leave this miserable job. Maybe if this guy would take a bath once in a while, this dirt bag would be
tolerable.
What are the main legal issues?
1) Discrimination Claims
2) Defamation Claim
3) Employer Investigations
4) Discovery Issues
14
Libel Scenarios
Smith University plans to file a libel lawsuit against two anonymous bloggers for posting comments about the
school’s decision to reward two high-level administrators (Professor Bob Jimson and Professor Linda
Simpson) with a grant of $250,000 to continue their scholarship in the area of Islamic studies.
The blog has since been removed. University officials said they strongly support freedom of speech and
academic freedom, "but they cannot tolerate the harassment, intimidation and defamation in which the
defendant engages in.”
The defendant’s blog comments are broken down line by line:
Line 1: Is this an American university or a covert foreign university nurturing home-grown terrorists?
Line 2: These professors are total scumbags.
Line 3: These professors are like all the professors at this university, they want to harm America.
Line 4: The university has evil intent in making these types of grants.
Line 5: Professor Jimson and Professor Simpson don’t deserve this reward and suck as professors.
Line 6: I’ve heard from reliable sources that Professors Jimson and Simpson are known child molesters.
Line 7: Professor Jimson is a known liar and sympathizer for communism and socialism.
Line 8: Three students told me both Professor Jimson and Simpson plagiarize often in their writings.
Line 9: This university hires unqualified people with leftist leanings.
Line 10: All the professors at this university are a bunch of thieves and should be fired.
Notes:
15
Social Media Legal Trap V: Unprotected Internet Opinions
Common Definition Of An Opinion: (Webster Dictionary)
1): a view, judgment, or appraisal formed in the mind about a particular matter
2. belief stronger than impression and less strong than positive knowledge b : a generally held view
3. a formal expression of judgment or advice by an expert
Legal Definition Of An Opinion
Testimony by a witness that is not based on personal knowledge of facts but rather what he thinks or surmises
with respect to the facts in dispute.
Legal Definition Of Facts
Something that took place: an act; something actual and real; an incident that occurred; an event; a thing done;
something that exists and is real as opposed to opinion or supposition; events which are proven in the evidence
in heard by a court and upon the law which operates.
Unprotected Opinions
1) President Obama is a child molester.
Fact or Opinion
2) President Obama is a terrible President.
Fact or Opinion
3) The “Sea Oyster” restaurant is horrible.
Fact or Opinion
4) The “Sea Oyster” restaurant gives you food poison.
Fact or Opinion
5) John Smith is a liar and cheat
Fact or Opinion
6) John Smith is full of garbage.
Fact or Opinion
7) Supervisor Linda Jones is a racist pig.
Fact or Opinion
8) Supervisor Linda Jones is a prejudiced person.
Fact or Opinion
9) Men are stupid and selfish.
Fact or Opinion
10) Male supervisors at Cittgo Inc. are stupid and selfish.
Fact or Opinion
11) John Barns tends to skate the truth in the courtroom.
Fact or Opinion
16
The Supreme Court Opinions Standard v. Promises Of Social Media Marketing
Milkovich v. Lorain Journal Co
Citation. 497 U.S. 1 (1990).
Brief Fact Summary. Milkovich (Petitioner) brought suit against Lorain Journal Co. (Respondent), when it
published an article, which implied Petitioner had lied under oath in a judicial proceeding.
Synopsis of Rule of Law. The First Amendment does not preclude a newspaper from being sued for libel,
when a plaintiff can show that statements published were an attack on reputation.
Facts. Milkovich was the wrestling coach at Maple Heights High School in Ohio. During the 1974 season, the
team was involved in an altercation at a home match, during which several people were injured. After the
altercation, the Ohio High School Athletic Association (OSHAA) placed the team on probation. Then, several
parents and students sued the OSHAA, in the Court of Common Pleas, seeking a restraining order of the
probation, on the grounds that due process had not been afforded to the members of the team. The court
overturned the conviction and, the next day, Respondent published an article alleging that Petitioner had lied
so the probation would be overturned. Petitioner brought suit, alleging defamation.
Issue. Whether a newspaper can be held liable for defamation, when it publishes an article about a private
figure which, albeit opinion, was designed as a character attack?
Held. Reversed.
The Court reversed the lower court ruling that the article constituted a constitutionally protected opinion, and
held that while the First Amendment does guarantee uninhibited speech, the important social values
underlying the law of defamation recognize a strong interest in preventing and redressing character attacks.
Discussion. The First Amendment gives great leniency to newspapers and their journalists; however, the
constitution also recognizes that defamation can exist, when an article is published specifically to attack
another’s character.
Notes:
17
Final Review










































The Internet has surpassed the telephone as the hub of communications in the U.S.;
The above fact now opens the door for courts to erect an Internet regulatory framework;
As an employee using social media you are building public records, not relationships;
Public record laws don’t change because you placed them on social media;
Your “List of Friends”may be proof of excluding people from viewing public records;
You should create two social media pages, one for work and one for personal use;
Don’t discuss any work related issues on your personal social media site;
Messages about business, especially decision-making statements are public records;
You don’t receive special protection for business messages on personal accounts;
Courts look at the aggregate of messages sent to determine if a quorum was met;
If a quorum was met, that could be a violation of the public records act;
Social media companies are profit making companies driven to attract advertisers;
Social media sites influence you to share personal details to sell to advertisers;
Your liability hinges on content, not what media platform the message was sent from;
Internet providers have safe harbors that you don’t;
Ignorance is not a defense in law, especially in using social media;
Your home is no longer your castle, when it comes to the privacy of your work computer;
A click of the mouse can permanently destroy a person’s reputation;
When you forward a post or e-mail you tacitly assent to the content of that message;
You are not liable for what people send you, only when you forward it;
You do have a legal duty to report cyberbullying, children pornography, and other threats;
Don’t be fooled into thinking you post anything you want on social media;
All civil and criminal laws apply to social media;
Social media has become a rich source of evidence for attorneys during litigation;
New federal amendments to electronic discovery laws push attorneys to search for data;
Your workplace, home, personal laptops, smart-phones, and cars are potential e-evidence;
Even on-line, courts are still protective of the attorney-client privilege;
Despite it’s best attempts, social media sites can not guarantee privacy;
You use social media sites knowing there is a risk your information will be hacked;
Under the 1986 ECPA Act, employers can monitor your Internet activity;
Employers only have to prove legitimate business interest to monitor your posts;’
Employers are using social media as character references for applicants and promotions;
Courts consider you a publisher when you blog or use social media sites;
As a publisher you have a higher duty of care to avoid libel and publicity of private facts;
You may responsible for third party remarks if you edit them or offer a libelous response;
Courts may consider your opinions facts, because they can be proved true or false
Every state has their own libel laws;
The four common elements of libel are: publication, truth, identification, and damages;
Libel per se means you don’t need to prove malice, the words are libel on its face;
Libel per se triggers are criminal accusations, loathsome disease, and business ethics.
Using social media doesn’t expand your First Amendment rights for unprotected speech;
Unprotected speech is obscenity, hate speech, defamation, inciting imminent harm.
18